RULE 33. NEW TRIAL (a) Grounds forDefendant's Motion. On athe defendant's motion, the court may vacate any judgment and grant a new trial to that defendant if the interestsinterest of justice so requirerequires. A motion for a new trial must specify the alleged defects and errors with particularity. If the case was tried without a jury, the court may take additional testimony and enter a new judgment.

(b) Motion Based on Newly Discovered EvidenceMotions.

(1) Newly Discovered Evidence.AAny motion for a new trial based on newly discovered evidence must be supported by an affidavit. A motion for a new trial based on newly discovered evidence may only be made within 30 days after discovery of the facts on which the motion is made andfiled within three years after the verdict or finding of guilty and supported by an affidavit. But if an appeal is pending, the court may grant the motion only on remand of the case.

(c) Motion Based on Other Ground. A(2) Other Grounds. Any motion for a new trial based on any reason other than newly discovered evidence must be filed within 10 days after the verdict or finding of guilty, or within such further time frame as the court sets during the 10-day period. Any motion for a new trial based on jury misconduct must be supported by an affidavit. AAny motion for a new trial based on any other grounds may be made on the file, exhibits, and minutes of the court. Pertinent facts not a part of the minutes may be shown by affidavit except as otherwise provided in these rules. Either party may procure a complete or partial transcript of the proceedings for use uponon the hearing of the motion. A motion may only be made within 7 days after the verdict or finding of guilty or within such further time as the court may fix during the 7-day period.

(3) Appeal Pending. If an appeal is pending, the court may not grant a motion for a new trial until the case is remanded.

(d)(c) Affidavits.

(1.) Response to Affidavit. If a motion for a new trial is based on an affidavit, the affidavit must be served with the notice of motion. TheThe opposing party shall have 7 days after service within which to servemay respond with opposing affidavits, which period may be extended by court ordermust be served within seven days after service of the motion for new trial. The court may extend the period for filing an opposing affidavit or permit reply affidavits.

(2.) Affiant's Attendance. If an affidavit is presented to the court in support of or in opposition to a motion for a new trial and the affiant is a resident of this Statestate, the court may compelrequire the affiant's attendance ataffiant to attend a hearing for examination under oath.

(e)(d) Other Post-Conviction Remedies. Nothing in this Rulerule may be construed to affect the remedies provided by N.D.C.C. ch. 29-32.1.

Rule 33 was amended, effective March 1, 2000, to provide the time for moving for a new trial runs from the "verdict or finding of guilty" rather than the "final judgment." The amendment also extended the time for moving for a new trial based on newly discovered evidence from two to three years. Finally, stylistic changes were made to the rule.

Rule 33 was amended, effective ___________________, in response to the December 1, 2002, revision of the Federal Rules of Criminal Procedure. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules.

Under this Rulerule, the court has no power to order a new trial on its own motion, but may act only upon a timely motion made by the defendant. This provision is intended to avoid problems of double jeopardy. The Rulerule does not affect the power of the court to declare a mistrial and order a new trial prior to the verdict or finding of guilty.

A timely motion for a new trial suspends the time to appeal from the judgment of conviction. N.D.R.App.P. 4(b); N.D.R.Crim.P. 37(b). An appeal may be taken within 10 days after entry of the order denying the motion for a new trial. N.D.R.App.P. 4(b); N.D.R.Crim.P. 37(b). The appeal may then be taken from the judgment of conviction using the grounds raised in the motion for a new trial.

"To prevail on a motion for a new trial on the ground of newly discovered evidence, the defendant must show (1) the evidence was discovered after trial, (2) the failure to learn about the evidence at the time of trial was not the result of the defendant's lack of diligence, (3) the newly discovered evidence is material to the issues at trial, and (4) the weight and quality of the newly discovered evidence would likely result in an acquittal." State v. VanNatta, 506 N.W.2d 63, 70 (N.D. 1993).

Minutes include the unofficial and untranscribed notes of the court reporter or court recorder and notes of the clerk of court indicating which exhibits have been received. The file includes all formal documents in the court file.